SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND [2022] NZHC 3619

SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCILOF NEW ZEALAND [2022] NZHC 3619 [23 December 2022]IN THE HIGH COURT OF NEW ZEALANDGREYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROAMĀWHERA ROHECIV-2022-418-17[2022] NZHC 3619UNDER the Health Practitioners CompetenceAssurance Act 2003IN THE MATTER OF an appeal against a decision of the HealthPractitioners Disciplinary Tribunal dated 16December 2022BETWEEN BHARATH RAJA SUBRAMANIAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE APPOINTED BY THEDENTAL COUNCIL OF NEW ZEALANDRespondentHearing: 22 December 2022 (by way of telephone conference)Appearances: H Waalkens KC for AppellantA Lane for RespondentJudgment: 23 December 2022JUDGMENT OF OSBORNE JThis judgment was delivered by me on 23 February 2022 at 12 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] By a decision of the Health Practitioners Disciplinary Tribunal (the Tribunal)delivered on 16 December 2022 (the decision reserved following a hearing on 1 to4 February 2022), the Tribunal, having found a charge of professional misconduct onthe part of Dr Bharath Subramani (a registered dentist) was established, imposedpenalties, including that his registration be cancelled under s 101(1)(a) HealthPractitioners Competence Assurance Act 2003, effective six weeks from the date ofthe decision. As the decision was dated 16 December 2022, the effective date ofcancellation is 27 January 2023. The Tribunal explained (at [653]) that were it not forthe fact the decision was being issued shortly before Christmas, it would have allowed28 days in which Dr Subramani would be allowed time to organise his practice (thatis, instead of the 42 days it identified).The appeal[2] Dr Subramani appeals the decision both in relation to cancellation and the otheraspects of the decision.[3] Mr Waalkens KC has filed the appeal urgently because of this Court's legalvacation and because of the matters of interim relief that arise.Interim relief[4] Dr Subramani applies without notice for a stay of the Tribunal's decision. Theapplication has proceeded today on a without notice basis but adopting the Pickwickprocedure. Ms Lane, for the Tribunal, was accordingly heard during this brief hearing(by telephone conference).[5] Dr Subramani's application is supported by his own affidavit and an affidavitof a Christchurch dental practitioner, Dr Michael Shand.[6] It is Dr Shand's role which is most relevant to the application before the Court.[7] At a time when Dr Subramani had experienced the significant issues in hispractice that had led to disciplinary charges, Dr Shand became the Dental Councilappointed supervisor of Dr Subramani (commencing September 2020). Through theperiod of his supervision Dr Subramani's practice has been limited to what has beenreferred to as "basic dentistry", with Dr Shand giving prior approval to allDr Subramani's intended treatment plans for any dental work he undertakes. Dr Shandprovided a reference for Dr Subramani in the context of the Tribunal's hearing at thestart of this year. He also gave oral evidence at the hearing on 2 February 2022. Hisevidence was supportive of Dr Subramani's ability to practice safely. In his affidavitfiled in this proceeding he has proposed that:... as I have observed firsthand since I was appointed as his supervisor back inSeptember 2020, [Dr Subramani] is performing safely and appropriatelywithin the limited scope of his dental practice. Indeed, I have commended tothe Dental Council that the restriction on his ability to practice only basicdentistry should itself be lifted — such is my confidence of how he isperforming.[8] I am advised that since the hearing in February 2022 Dr Subramani hascontinued to practice throughout the year under Dr Shand's supervision. There hasbeen no suggestion of any fresh complaint arising in relation Dr Subramani'sprofessional conduct in that period.The procedural difficulty[9] The timing of the release of the Tribunal's decision has created a proceduraldifficulty. The normal expectation for an appellant in relation to such a decision wouldbe that the appellant's solicitors would have the opportunity before a decision tookeffect to have this Court hear on-notice an application for a stay. That will not bepossible before 27 January 2023.[10] Having regard to that situation, I identified in the course of the hearing apractical solution which I put to counsel. The solution is to impose a stay which wouldhave the effect of postponing for the time being the effective date of Dr Subramani'scancelled registration from 27 January 2023 to 17 February 2023. Within that periodthe application for a stay would be brought on for hearing on an on-notice basis.[11] At that point, Ms Lane indicated that there was a difficulty with that solution.She explained that Dr Shand, who was at the point of professional retirement, hadallowed his practising certificate to lapse in October 2022, whereupon the DentalCouncil had notified him that it was nonetheless prepared to have him continue in hissupervisory role until the Tribunal's determination.[12] Given the fundamental distinction in roles between the Dental Council and theDisciplinary Tribunal, Ms Lane (appearing for the Tribunal) suggested that a stayought not be ordered given that Dr Shand may not be permitted by the Dental Councilto continue to provide a supervisory role.[13] In the urgent context of today's hearing, I am left in substantial uncertainty asto what exactly are the arrangements between the Dental Council and Dr Shand. Iunderstood Ms Lane at one point to indicate that Dr Shand had been assured that hewould be able to continue in his supervisory role until the outcome of the Tribunal'shearing was known. It might be anticipated that the Dental Council, if aware of thecircumstances of the timing in which the Tribunal delivered its decision, mightcontinue to take a flexible approach to Dr Shand's supervisory role. In any event, thatsituation can be protected by a reservation of leave to the parties to return to the Courtif necessary.[14] I add for completeness that I was referred also to a letter written by Ms Lane'sfirm to Mr Waalkens dated 21 December 2022 in which it is stated that Dr Shand'speriod of supervision will "shortly come to an end" and that he "cannot continue after[27 January 2023]". As I have not been given any original document identifying thatdate as a defined cut-off date on the part of the Dental Council, I consider it appropriateto deal with this area of uncertainty by reservation of leave to the parties.Stay of proceedings — the law[15] This application for a stay is brought under r 20.10 High Court Rules 2016.[16] Dr Subramani's appeal does not stay enforcement of the decision of theTribunal. Rule 20.10(2) however empowers this Court to stay enforcement of thedecision and to grant any interim relief.[17] It is the interests of justice which should chiefly guide the exercise of discretionunder r 20.10.1 That said, I recognise in relation to matters of professional disciplinethe importance also of not disregarding the findings of fact of the Tribunal whosedecision is under appeal. In this case the Tribunal has found that Dr Subramani isoperating at the level of a junior dental student.2[18] However, what is sought by this present application is effectively what iseffectively a three-week extension of the period before which Dr Subramani'sderegistration becomes effective. On the information available I am not able to regardthat brief period, coming so long after Dr Shand began his supervision (which theevidence suggests has been satisfactory) as creating a meaningful risk to the public ormore broadly to the professional reputation of dentists.Outcome[19] I am satisfied that this is an appropriate case in which to stay execution of thedecision. The primary focus of the hearing has been on the decision to cancelDr Subramani's registration. Given however that the appeal will cover all aspects ofpenalty, it is appropriate that those other aspects also be the subject of the interimorder.Orders[20] I order:(a) by way of interim relief under r 20.10(2)(c) High Court Rules 2016 thedate on which Dr Subramani's registration will be cancelled (unlessearlier order is made) will be 17 February 2023;(b) the decision of the Tribunal dated 16 December 2022, wherebyDr Subramani was censured and fined $10,000 and ordered to pay$150,000 in costs, is stayed until further order of the Court;1 See Baker v Lawrence [2022] NZHC 2734 at [3].2 Professional Conduct Committee appointed by the Dental Council of New Zealand v SubramaniHPDT 1282/Den21/511P, 16 December 2022 at [617].(c) leave is reserved to the parties to apply on three working days' notice;(d) the plaintiff is promptly to file an on-notice application for stay of theTribunal's decision, with that application to be given on its filing a firmhearing date at 10 am on 7 February 2023 (one and a half hoursreserved) (Osborne J); and(e) the costs of the without notice application are reserved.Solicitors:Claro Law